Will 300 employees be allowed to discriminate? MPs debate amending Civil Union Act

The LGBTQ community and rights groups sent five times more submissions in favour of amending the Civil Union Act than the first time round. But questions remain how this will be implemented.

The Portfolio Committee on Home Affairs in Parliament is currently considering a bill proposed by Cope MP Deidre Carter to remove Section 6 of the Civil Union Act. This section allows Home Affairs officials to refuse to marry same-sex couples on the grounds of their “conscience, religion [or] belief”.

More than half of the 692 Home Affairs marriage officers are exempted. Out of 412 branches, only 111 have marriage officers willing to marry same-sex couples, effectively reducing LGBTQ people to second class citizens. (There is such op-out option when it comes to opposite-sex couples.)

In April, Parliament called for public submissions on the matter and received a paltry 86 in favour and 14 against. Last month, there was a request for a second round of submissions and this time the LGBTQ community and human rights groups came to the party.

Roché Kester, COPE’s Media Correspondent in Parliament, confirmed to MambaOnline that in the second round of submissions a total of 568 were received, with a whopping 503 in favour and just 65 against.

The principle of amending the Civil Union Act has been accepted by the Department of Home Affairs and the portfolio committee, which met again on Tuesday. But while there is overwhelming support for not allowing new marriage officers to opt out of same-sex marriages, there is debate about what should happen to existing staff.

Home Affairs appears to support the idea that staff who opted out before an amendment to the Civil Union Act should be allowed to continue to do so. Officials believe that only new staff should be affected by any change to the status quo.

There cannot be any more discrimination

Deon Erasmus, the department’s Chief Director for Legal Services, was quoted by the Pretoria News: “You are balancing the rights. Going forward, anybody employed as a marriage officer and who does not have that prior to the amendment of the [act] will have to conduct such marriages.”

The department is promising to ensure that branches make alternative “arrangements” for any same-sex couples that wish to be married at offices that do not have non-exempt marriage officers.

Home Affairs, however, has made this commitment before and failed to ensure that same-sex couples were not turned away. It is also unclear how long it will take for existing marriage officers to retire or resign and be replaced by new staff.

The department’s position was not welcomed by Carter. She told the committee: “Often when we implement new legislation or amend legislation we have to look at a phasing-in period but the presentation we got sadly today from the department to me is not a phasing-in period it is continual discrimination.”

She pointed out that trying to protect 300 Home Affairs employees who opted out of officiating same-sex marriages could not be used to deny the constitutional rights of eight percent of the population who may be LGBTQ.

“As much as we believe that we don’t want to see any person losing a job, if it comes to a point where there is no alternative then you will say there must be a phasing-in period. Not for the next 30 years or the next 25 or 20 years; we look at a phasing-in period of 12 months or 18 months. But in the meantime there cannot be any more discrimination,” she said.

The matter remains unresolved. Committee Chairperson Hlomane Chauke has asked parliament’s lawyers to draft a possible addition to the Civil Union Amendment Bill by next week to address the issue.